Lawsuit challenges Kentucky’s ban on using marijuana for medical purposes

Dan Canon, a Louisville attorney who represents several people suing to overturn Kentucky's ban on medical marijuana, says the Kentucky Constitution guarantees a right to privacy and to be free of arbitrary police powers.

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Dan Canon, a Louisville attorney who represents several people suing to overturn Kentucky's ban on medical marijuana, says the Kentucky Constitution guarantees a right to privacy and to be free of arbitrary police powers.

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Several Kentuckians who say they get relief from medical marijuana filed a lawsuit Wednesday to challenge the state’s criminal ban on the drug, arguing that cannabis is naturally effective and does not have the addictive dangers of opioid painkillers.

In their suit, filed in Franklin Circuit Court, Dan Seum Jr., 59, and Amy Stalker, 37, both of Jefferson County, and Danny Belcher, 69, of Bath County say that over half of Americans now are permitted by the states where they live to use marijuana for chronic pain and other ailments. But in Kentucky, depending on how much of the drug they possess, marijuana users risk felony or misdemeanor convictions that could put them behind bars.

The plaintiffs are asking the court to decriminalize marijuana possession and trafficking for themselves “insofar as they seek to use cannabis for valid medicinal purposes.” Under Kentucky law, having eight or more ounces of marijuana in one’s possession is considered sufficient evidence of intent to sell it to others.

“It becomes cruel when you have a solution that works and is helping people in other states, but if people use it here, they’re criminals,” Stalker said in a recent interview.

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Stalker said she has a long history of health problems due to irritable bowel syndrome and bipolar disorder and the powerful pharmaceutical drugs that were prescribed to her to treat those conditions. In recent years, Stalker said, she has successfully treated herself with a combination of cannabis, amino acids and other natural substances that are gentler to her body.

Stalker still carries the medical marijuana patient’s license the state of Colorado issued her four years ago when she lived there and a prescription written by her doctor for the strain called Bubble Hash. However, both pieces of paper became worthless the day she moved back to Kentucky to care for her ailing mother.

“When I’ve talked to legislators in Frankfort about this, their advice was for me to move away again, to go live in a state where it’s legal,” she said. “But I grew up here. I love it here. My family is here. Is that really a choice I should have to make to stay healthy?”

It’s “getting appalling” that Kentucky leaders have consistently ignored their constituents’ pleas to allow marijuana, “especially when the Bourbon Trail is such a fabulous thing to boast about,” Seum said.

Amy Stalker says she had more control over her own health when she lived in Colorado, where marijuana can be legally prescribed as medicine. Stalker now lives in Kentucky, where medical use of marijuana is banned.

The suit names Gov. Matt Bevin, a Republican, and Attorney General Andy Beshear, a Democrat, as defendants. It claims that Kentucky’s medical marijuana ban violates the plaintiffs’ rights under the Kentucky Constitution to privacy and to be free of the “absolute and arbitrary power” of the state over their “lives, liberty and property.”

“The exercise of the commonwealth’s police powers to criminalize cannabis for medicinal purposes is an unjust result of the broad prohibition against cannabis and has wrought an unjust hardship for Mr. Seum, Ms. Stalker, Mr. Belcher and thousands of other medical cannabis users in Kentucky who were left with the unconscionable choice to either live in permanent pain from their illnesses, risk taking highly addictive and proven deadly opioids or benzodiazepines, or live as criminals for their use of cannabis to treat their illnesses,” the suit claims.

Smoked or ingested, cannabis has been used as medicine for most of recorded history. It was a legal remedy in the United States as recently as the mid-20th century. In 1970, however, as the war on drugs began, the U.S. government classified marijuana as a Schedule 1 controlled substance, the designation intended for drugs — like heroin — that are supposed to have a high potential for addiction and no medical value.

Since 1996, 29 states and the District of Columbia have authorized the medical use of marijuana within their borders, including West Virginia, Ohio and Illinois. While the federal government still considers the drug to be illegal nationwide, Congress voted in May to give the U.S. Justice Department no money to prosecute medical marijuana cases in states where such use has been permitted.

Kentucky is not one of those states. The Kentucky General Assembly — where plaintiff Seum’s father is a longtime Republican state senator — has rejected several medical marijuana bills in recent years. The one it did approve, Senate Bill 124 in 2014, was very narrowly written: It let certain pediatric seizure patients use an oil derived from hemp and marijuana under carefully controlled conditions.

The state officials named as defendants in the suit appear split over the subject. Bevin has said on several occasions that he would support legalization of marijuana for medical use, although not for recreational use.

“The devil is in the details,” Bevin said during a radio interview in February. “I am not against the idea of medical marijuana if prescribed like other drugs, if administered in the same way that we would other pharmaceutical drugs. I think it would be appropriate in many respects. It has absolute medicinal value. But again, that’s a function of (a bill) making its way to me. I don’t get to do that executively, it would have to be a bill.”

In contrast, Beshear said during his 2015 attorney general campaign that he would not consider even limited legalization unless the U.S. Food and Drug Administration authorized cannabis as a medicine.

On Wednesday, spokespeople for the two elected officials said they have not had adequate opportunity to review the lawsuit.

In their suit, the plaintiffs explain the myriad ways that cannabis has helped them.

Seum, for example, was a football coach at Farnsley Middle School in Louisville from 2008 to 2012. Worsening back pain led him to try spinal fusion surgery, followed by an OxyContin prescription. He soon realized, to his horror, that he had become addicted to OxyContin, affecting his cognitive and motor skills and interfering with his coaching job. So he asked his doctor to begin reducing the dosage.

Seum started using cannabis to manage his pain and nausea from OxyContin withdrawal. Since then, several doctors have refused to help Seum with his continuing back problems unless he agreed to stop using marijuana. He has self-medicated with cannabis since 2014.

But possessing the drug is illegal, with penalties that can vary depending on the attitude of local law enforcement. A Jefferson County police officer who caught him with “a tiny fraction of an amount” gave him a $67 citation for the drug; a prosecutor in Grayson County sent him to jail for two days for roughly the same amount.

“It was gonna be four (days) and they made it two, the judge did, and I had to do two days in jail,” Seum said in a recent interview. “I couldn’t have my meds. I had to sleep on a cold, steel rack with four rods in my back. It was terrible, terrible. But there was no getting out of it.”

Belcher served in the Vietnam War during the late 1960s as a combat infantry sergeant. As a result of his combat service, Belcher suffers from post-traumatic stress disorder, alcoholism and a compression fracture in his spine, according to the suit.

The U.S. Department of Veterans Affairs put Belcher on a number of powerful pharmaceutical drugs, including Valium, Librium and Tylenol 3 with codeine. The medicines “left me feeling fuzzy-headed, and they were eating up my insides,” Belcher said recently. By occasionally smoking marijuana at home, he said, an option the VA refused to discuss with him, he has been able to discontinue the use of the prescribed medicines, stop drinking alcohol and manage his health problems.

“I know veterans who are drugged out of their minds on 25 or 30 pills for all sorts of stuff, approved by the VA. They drug the daylights out of us Vietnam vets because they don’t know what else to do with us,” Belcher said. “And then I’ve got friends in the states where (marijuana) is legal, and they’re getting the relief that they need. These aren’t a bunch of stoners using it recreationally. They use it when they’re in pain, and that’s it, and it works for them.”